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Inter-Pacific Investment Ltd v Sulis [2007] VUSC 49; Civil Case 08 of 2006 (15 May 2007)

IN THE SUPREME COURT
OF THE REPUBLIC OF VANUATU
(Civil Jurisdiction)

Civil Case No. 08 of 2006

BETWEEN:

INTER-PACIFIC INVESTMENT LIMITED

Claimant

AND:

CHRIS SULIS
First Defendant

AND:

DIRECTOR OF LANDS
Second Defendant

RULING AS TO COSTS

1. Both defendants have accepted the invitation in Paragraph 17 of the Reserved Judgment No. 2 to apply for costs. Both submit in essence that they are successful parties and that there are no circumstances which should cause the Court to depart from the usual principle that costs should follow the event.

2. The general rule about costs is Rule 15.1 which provides:

15.1 (1) The court has a discretion in deciding whether and how to award costs.

(2) As a general rule, the costs of a proceeding are payable by the party who is not successful in the proceeding.

(4) The court may order that each party is to pay his or her own costs.

The discretion to depart from the general rule must be exercised judicially.

3. In this case, I am of the view that it is in the interests of justice to depart from the general rule and for costs to lie where they fall. My reasons apply to both defendants equally and follow.

4. The claimant was successful in establishing liability against both defendants. Specifically, Mr. Sulis lodged and maintained patently defective cautions against the claimant’s land without any reasonable cause; and the Director of Land Records negligently registered and failed to remove those defective cautions.

5. Both defendants stremously denied any liability. The establishing of liability was the primary focus of the dispute. It accounted for most of the expenditure of legal costs, both pre-trial and at trial. In justice, the costs of their unsuccessful efforts to avoid liability should fall on the defendants. My view on costs would be different if the defendants had conceded liability and the dispute had related to quantum only.

6. Even with regard to quantum, it was clear to the Court that the claimant must have suffered some loss (see Paragraph 60 of Reserved Judgment No.1). It just failed to provide the Court with the necessary evidence. That is a subsidiary reason why the justice of the case requires that costs lie where they fall.

7. There will be no order for costs in favour of any party.

Dated AT PORT VILA on 15 May 2007

BY THE COURT

C. N. TUOHY
Judge